The Dutch government is urgently appealing a court decision that would bring global production of the West’s fifth-generation fighter jet to a halt.
A first instance decision on Monday gave the government a week to stop exporting parts for the F-35 stealth fighter-bomber, which Israel is using in its bombardment of the Gaza strip, where its war has killed more than 28,000 Palestinians, a majority of them women and children.
The Court of Appeal in The Hague cited “a clear risk that Israel’s F-35 fighter jets might be used in the commission of serious violations of international humanitarian law.”
That could, in turn, implicate the Netherlands, which both manufactures and stocks F-35 parts.
Israel insists its war is aimed at destroying Hamas, after the Palestinian armed group attacked southern Israel on October 7, killing nearly 1,200 people. But the mounting toll of civilian casualties; the bombardment of schools, refugee camps and hospitals; and the forced displacement of almost all of Gaza’s population have sparked global outrage. South Africa has hauled Israel to the International Court of Justice, accusing it of genocidal intent. And the court at The Hague this week appeared to share some of the concerns the ICJ is mulling over.
“Israel does not take sufficient account of the consequences of its attacks for the civilian population,” the Dutch court said. “This means that the export of F-35 parts from the Netherlands to Israel has to be stopped.”
Doing so would have consequences that extend far beyond Israel and the war in Gaza.
The Netherlands hosts one of three warehouses worldwide for F-35 parts, at Woensdrecht. However, the Netherlands argues that Israel cannot be singled out for an embargo, because the Dutch government exports parts to all countries in the F-35 programme under a single licence, labelled AV009.
This was one reason why the Dutch government refused to suspend parts deliveries to Israel in the first place.
“Based on AV009 it is not possible to exclude a specific country as a destination from deliveries,” the court acknowledged. “All suppliers to Israel would then have to be excluded, but that would mean that those suppliers would no longer be allowed to supply to other countries.”
Three Dutch humanitarian organisations brought the lawsuit: Oxfam Novib, PAX Netherlands Peace Movement Foundation and The Rights Forum.
The decision, if it is not overturned on appeal, could have serious implications for the F-35, designed and built by the United States-based Lockheed Martin Corporation.
The order book for the jet stood at more than 150 last October, as NATO members have lined up to adopt it as their next-generation aircraft. Countries with tens of billions of dollars’ worth of aircraft on order include the US, Switzerland, Finland, Denmark and the Czech Republic. Israel is the only country that operates the aircraft in the east Mediterranean. It has bought three squadrons of 24 planes each.
International law coming into its own?
The Dutch court’s decision rests on the Geneva Conventions of 1949, a cornerstone of international humanitarian law.
The decision is unparalleled, say experts, because usually only international courts apply international law.
“No internal court until today had gone into the process of interpreting the Geneva Conventions,” Maria Gavouneli, a professor of international law at the University of Athens, told Al Jazeera. “At least, I can’t think of another case in the last 30 years.”
With wars raging in Gaza and Ukraine, Gavouneli believes that the world is going through a period when international law is being applied with increasing vigour.
Last year, the International Criminal Court in the Hague issued an arrest warrant against Russian President Vladimir Putin over the kidnapping of Ukrainian children from areas his troops occupied after invading the country in 2022. Putin now cannot travel to countries that accept the court’s jurisdiction without fear of arrest.
Al Jazeera has previously reported on how a British law firm has sued the Russian private military company Wagner for its role in the Ukraine war. It aimed to seize Wagner’s assets and cripple a vital subcontractor to the Russian military. “We’re seeing an increasing practice called lawfare – exercising politics by using the justice system to wield international law,” said Gavouneli. “Ukraine has done the same, suing Russia for every international law violation under the sun.”
The Netherlands provided fertile ground for the F-35 lawsuit.
“The Dutch are particularly sensitive to humanitarian issues because they’ve been burned before,” Lefteris Papagiannakis, who heads the Greek Council for Refugees, a legal aid charity, told Al Jazeera.
“The Dutch Supreme Court in 2019 condemned the Netherlands as partly responsible for the murders of 350 Bosnians at a United Nations camp in Srebrenica in 1995,” said Papagiannakis.
The camp was supposed to be a safe haven for refugees, but Dutch peacekeepers handed the men over to units of the Army of the Republika Srpska, Bosnia’s Serb entity, arguing that they couldn’t protect them. The Serbs subsequently killed them.
Those sensitivities were reawakened after 2020 when the Greek coastguard was accused of pushing refugees back to Turkey without asking them if they needed international protection – an illegal act under the Geneva Convention Relating to the Status of Refugees, which demands that countries consider offering asylum to those who ask for it.
The Hague-based Advisory Council on Migration, which briefs the Dutch government, suggested the Netherlands should withdraw their contingent from Frontex, the European Union’s border and coastguard, because they could be implicated in a humanitarian crime if Frontex were proven to have turned a blind eye to these alleged pushbacks.
Straining friendships
Israel’s allies have grown increasingly uneasy with the human toll of its war in Gaza.
Both Britain and the United States have sanctioned Israeli settlers over violent human rights offences against Palestinians in the occupied West Bank.
The European Union’s foreign policy chief implied on Monday that the United States, which provides weapons to Israel, should cut military aid. “If you believe the death toll is too high, maybe you can do something to make it lower,” Josep Borrell told an informal press gathering. He criticised US President Joe Biden for not acting.
The International Court of Justice last month told Israel to take appropriate measures to prevent its troops from committing genocide in Gaza, in response to a lawsuit brought by South Africa.
“Israel’s commitment to international law is unwavering,” Israeli Prime Minister Benjamin Netanyahu said after the ruling. “Equally unwavering is our commitment to defending our country and our people.”
Under the UN Charter, countries have a sovereign right to defend themselves if they are attacked, but the ICJ has previously ruled that this right has limitations when it comes to territories under occupation.
On Tuesday, South Africa again sought recourse to international law, saying it would ask the ICJ to build on its January ruling and call for additional measures to prevent Israel from storming Rafah.
Some 1.7 million Palestinians are sheltering there, after being forced to the southernmost part of Gaza by Israeli orders to vacate from other parts of the besieged strip. Israel, which has already been bombing Rafah, has said it plans to also launch a ground offensive there.
